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2017 DIGILAW 222 (HP)

Dayal Singh v. State Of H. P.

2017-03-21

NARINDER CHAUHAN

body2017
ORDER Narinder Chauhan, I.A.S. - The revision petition under section 17 of the H.P. Land Revenue Act, 1954 (hereinafter referred to as ''the Act''), has been preferred against the order dated 28.03.2016, passed by the Ld. Commissioner, Shimla Division, in Case No. 277/2011, vide which the revision petition of the present petitioners has been dismissed. 2. Brief facts of the case are that on the report of field revenue agencies, encroachment proceedings under section 163 of the Act, were initiated against the petitioners S/Shri Dyal Singh, Yashwant Singh and Rajeshwar separately in three different-cases No 1/2010, 4/2010 and 6/2010, for encroaching upon the Government land comprised in khasra No.415/1 and 411, kita 2, area measuring 0-40-39 hect, khasra nos. 416/2, 417, 419, kita, 3, measuring 0-60-52 hect. and khasra no.416/1, measuring 0-44-43 hect. Respectively. After following due process of law, the A.C. 1st Grade, Kotkhai, vide order dated 30.11.2010, passed ejectment orders against all the petitioners. Feeling aggrieved with these orders, all the petitioners filed a common appeal No.25-VIII/2011, before he Collector, Sub-Division, Theog, mainly on the grounds that proper demarcation was not conducted on the spot by any Revenue Officer as per the requirement of law and proper opportunity of being heard has also not been provided by the lower revenue staff and the petitioners have been condemned unheard. That the petitioner No.1, is in possession of the land in question prior to 1970 and though the orders of ejectment have been passed against the petitioner yet the possession has never been taken by the respondent and the petitioners are still in peaceful and uninterrupted possession of the suit land. Further that the petitioner has raised the question of title by way of adverse possessions on the suit land and to determine the issue, and determine the same in accordance with the provisions of section 163(3) of the Act. The Id. Collector, after affording due opportunity of being heard and on perusal of the case file of trial court, dismissed the appal vide order dated 28.10.2011 observing as follows:- I have carefully gone through the entire record placed before me and inferred that the court below had not determined the question of adverse possession as claimed by the appellants, as the Patwari & Kanungo concerned have specifically stated in the their statements that the appellants had recently encroached upon the Govt, land by raising apple orchard on it. Therefore, the appellants failed to produce the conclusive proofs of their old possession. Had there been any adverse possession of the appellants why not they enter their possession during the course of Girdawari as well as during the course of settlement operation. Therefore, the plea of adverse possession not proved on records by merely saying that they are in possession of the Govt. Land for the last more than thirty years is not sustainable. The ruling cited by the Id. Counsel for the appellants is not thus tenable and relevant. " 3. Dis-satisfied with the above order of the Id. Collector, the present petitioners filed a revision petition before the Commissioner, Shimla Division on similar grounds as were taken in appeal before the Id. Sub-Divisional, Collector. After hearing the parties and on perusal of record, the Id. Commissioner, vide the impugned order dated 28.3.2016, passed in case No. 277/2011, dismissed he (sic-the) revision, upholding the orders passed by the courts below. Hence, the present revision petition. 4. I have heard the Id. Counsel for the petitioners, who reiterated the grounds of the revision petition and argued that the impugned orders are neither based upon any reasoning nor can be called a speaking order. Further that the proceedings under section 163 has been initiated by the A.C. 1st Grade upon the report submitted by the filed agency whereas the petitioners have never been associated by the concerned officials when they have visited the spot nor any proper demarcation has been conducted on the spot, as such in the absence of legal and valid demarcation no court could have come to the definite conclusion of encroachment. Ld. counsel further averred that the petitioners are in possession over the suit land since 1970, and the ejectment orders were earlier passed against the petitioners but warrant of ejectment has not been executed against the petitioners and the land in question is still in their possession and this fact is sufficient to prove that the issue of question of title is involved in this matter, which a was required to be ascertained by the A.C. 1st Grade, by converting himself as a Civil Court, whereas the petitioners have placed on record sufficient material prima facie suggesting that they are owner in possession of the land in question, as such, the impugned orders are liable to be set aside. 5. 5. I have considered the arguments advanced by the Id. Counsel for the petitioners and have also gone through the record of the courts below which was requisitioned before admission. From the perusal of the case file of the trial Court, it is clear that the land in question is recorded under the ownership of State Government and the field revenue agencies have clearly reported that the petitioners have encroached upon the land by raising an apple orchard. So far as the claim of adverse possession is concerned, the petitioners have failed to submit any documentary evidence before the trial court to substantiate the same. Further the contention of the petitioners that they were earlier proceeded under section 163 of the Act, but ejectment warrants were not executed on spot and thus they are in adverse possession over the suit land is not acceptable in the eyes of law because once the State has proceeded to eject the encroacher, such encroacher cannot be said to be in peaceful, and continuous possession over the land, which is one of the essential ingredients of the "adverse possession". Moreover, mere raising of question of title does not make it incumbent upon the Revenue Officer to decide such a question, as he has to at first ascertain as to whether such a question is actually involved or not. In this regard Hon''ble Justice Rajive Sharma of H.P. High Court in case "Bishan Dass v. State of H.P." [2011(2) HLR, 829] , has held that "if the revenue Officer is satisfied that yes this question arise, only in those case, he has to determine this question as if he were a Civil Court". 6. Further, on perusal of the copy of tatimas of encroached land, do not suggest/indicate that there is any private land of the petitioners or any other persons abutting the alleged encroached land, thus the plea of the petitioners qua demarcation by competent authority i.e. Assistant Collector of either Grade, is not sustainable. Moreover, it is pertinent to mention that the Financial Commissioner(Revenue) to the Government of H.P. by way of instruction issued vide letter No.Rev.B.A.(A)(3)-3/2012, dated 13.9.2012, has empowered the Field Kanungo to demarcate such Government land or private land abutting the Government Land subject to the provisions of section 107 of the H.P. Land Revue Act, 1954. 7. Moreover, it is pertinent to mention that the Financial Commissioner(Revenue) to the Government of H.P. by way of instruction issued vide letter No.Rev.B.A.(A)(3)-3/2012, dated 13.9.2012, has empowered the Field Kanungo to demarcate such Government land or private land abutting the Government Land subject to the provisions of section 107 of the H.P. Land Revue Act, 1954. 7. In view of the above discussion, I find no illegality or irregularity having been committed by the courts below, which warrant any interference of this court by invoking revisional powers. As such, the orders passed by the courts below are upheld and the present revision petition is dismissed in limine being devoid of merit. 8. Announced in open court today the 21st March, 2017. The record of the courts below be returned and the file of this court be consigned to the record room after due completion.